Back in 2009, I blogged about United States v. Cotterman, a fascinating Fourth Amendment case from the District of Arizona involving a forensic search of a computer seized at the U.S./Mexico border. Ninth Circuit precedent holds that the government can search a computer at the border with no suspicion under the border search exception, just like it can search any other property. The question in Cotterman was whether the government could seize the computer, bring it to a forensic specialist 170 miles away, and have the forensic specialist search the computer there two days later. Is that still a border search? Or does the delay in time, or the change in location, mean that the border search exception doesn’t apply (or applies differently)? The District Court held that the delay in time and the moving of the computer required applying the ‘extended’ border search doctrine, which requires reasonable suspicion, instead of the traditional border search exception, which does not. As I noted here, the Government appealed but has not argued that the search was justified by reasonable suspicion. As a result, the case presents a pure legal question: Does the Fourth Amendment require reasonable suspicion in these circumstances, or is the seizure and subsequent search permitted without any cause?
In a decision released this morning, United States v. Cotterman, a divided Ninth Circuit reversed and held that the seizure and search were permitted without cause. The majority opinion by Judge Tallman, joined by Judge Rawlinson, reasons that it is clear, under Ninth Circuit precedent, that the search would have been legal if it had occurred at the border without delay. The opinion reasons that Cotterman’s expectation of privacy is what matters, and that because Cotterman’s computer was taken to be searched at the border, Cotterman’s expectation of privacy is not impacted by where the computer was taken:
[T]he Government made it abundantly clear to Cotterman that his computers and cameras were not cleared for entry into the United States and that it had retained custody of that property until it could fully allay its concerns that they contained contraband. As a result, he never regained his normal expectation of privacy in his computer because he ould only reasonably expect that it would be searched to alleviate the self-protection concerns of the sovereign. He never breathed that deep sigh of relief that follows from the realization that he had faced all the rigors of inspection and that nothing more lingered to impede his travels.
As a result, the moving of the computer after it was seized was constitutionally irrelevant:
So long as property has not been officially cleared for entry into the United States and remains in the control of the Government, any further search is simply a continuation of the original border search—the entirety of which is justified by the Government’s border search power.
The next question was how much delay is permitted. That is, for how long can the government hold a computer pursuant to the border search exception in order to search it? Because holding the computer was a seizure, the test was reasonableness: Specifically, whether the detention “was reasonably related in scope to the circumstances that justified the initial detention at the border.” In this case, it was: The Government proceeded quickly to bring the computer to an expert, the expert searched the computer pretty quickly, and worked through the weekend to get the search completed. Further, the fact that the computer was brought to the expert rather than the expert being brought to the computer was not only acceptable, but wise: “our common sense and experience inform us that the decision to transport the property to the laboratory, instead of transporting the laboratory to the property, resulted in a shorter deprivation.”
Judge Betty Fletcher dissented. She agreed that the moving of the computer was irrelevant, but argued that all time-consuming and comprehensive computer searches at the border should require reasonable suspicion. In a footnote, Judge Fletcher tried to distinguish United States v. Arnold, the Ninth Circuit precedent allowing suspicionless computer searches at the border on the ground that the prior Ninth Circuit precedent did not involve a comprehensive search that took considerable time.
My basic take is that I think the Ninth Circuit’s decision was right. As I argued in my initial post, it doesn’t make sense to say that the border search doctrine applies differently depending on where the computer is moved. Further, it seems right that the duration of the seizure should be determined by a reasonableness inquiry. And here, the government’s conduct seems very reasonable. Judge Fletcher asked the question of what reasonableness means in the setting of the border search exception, but that’s an old question, I think: I don’t see any reason to think that the reasonableness standard gives the government limitless authority, which is what Judge Fletcher seems to fear. More broadly, Judge Fletcher’s dissent seems to really want to go back and relitigate Arnold, which rejected a reasonable suspicion requirement for computer searches at the border. Given the issues raised by the Cotterman case itself, and the issues it raised, I think the majority was basically right.
NotHappy says:
Do ever not agree with increasing government power when it comes to the 4th amendment?
March 30, 2011, 3:24 pmMike says:
So, wait, any businessman, journalist, or activist traveling to an important meeting or conference can have any computer equipment they have on them, that they presumably *need* for this activity, impounded and held for several days (at which points whatever they were traveling for may have completely passed), without even a proof of suspicion, and this is *reasonable*? Seriously?
So essentially anyone traveling for an important activity should always
a) Have absolutely no important/confidential/private data on their hard drive
and
b) Have a backup plan to buy a new laptop on the other side of the border…
Because that’s what “no suspicion” means, that they could (if they got funding) stop every single laptop anywhere near the border and seize it for some indeterminate amount of time, provided that they make a show of trying to get it back to you quickly.
Or am I missing something here that makes this less horrible? I’m really not trying to be one of those “constitution free zone” crazies with this.
March 30, 2011, 3:55 pmptt says:
Keep all your data in the Cloud.
Not that I’m certain that would stop ‘em from finding it there, too.
March 30, 2011, 4:03 pmLe Messurier says:
So, can one get items “cleared for entry” prior crossing the border? Or prior to attempting to cross the border?
March 30, 2011, 4:14 pmSteve says:
I am not persuaded that this issue is new or unique to the computer context. For example, if customs finds a mysterious powder in your luggage at the border, either they are permitted to send it to the lab to find out what it is or they aren’t. I suspect they are, as it seems unlikely that customs is required to maintain a chemistry lab at every border crossing, but either way I have to think the issue has been settled.
If they can send your bag of powder off to the lab I’m not sure why a computer would be so different.
March 30, 2011, 4:16 pmEMB says:
As a non-lawyer basically unfamiliar with Fourth Amendment law, I’m rather confused as to why this shouldn’t require probable cause, even at the border.
I mean, I understand why opening up the physical computer to check that the hard drive/battery/etc. aren’t actually full of drugs could be a perfectly reasonable and routine border search. Moreover, if there were suddenly serious worries about, say, biological weapons materials being smuggled into the country in laptops, I could see it becoming routine and reasonable to ship those laptops to a lab to test for this (even if it took days), but what’s the justification for applying this to the data as well?
In particular, the invasiveness of a search of my laptop’s hard drive seems far greater than the invasiveness of, say, a body cavity search. And even a mere body cavity search at least requires reasonable suspicion.
March 30, 2011, 4:16 pmBill Twist says:
You can copy the hard-drive on a computer and send the person on his way with his computer, and if it turns out he had contraband information, you can always arrest him afterwards. You can’t do that with, say, powder.
Remember, what we are talking about at the root of this is information, not drugs, explosives, weapons, poisons, or anything else with a physical presence. Information that can already cross the border without the necessity of being physically carried by an individual. I find it ludicrous that they couldn’t image the drive (Delaying him perhaps an hour or two), and send him on his way with his computer. At worse, they find evidence of a felony, and they can put a warrant out for his arrest, just as they would do if they kept the computer and let him walk. In the mean time, he loses the use of his computer for at least two days, and probably more.
I just can’t find a compelling argument for keeping it, other than they didn’t know how to copy the information on it at the border crossing.
March 30, 2011, 4:30 pmOrin Kerr says:
Mike:
I’m curious, what difference does it make that a person is a businessman with an “important” meeting? Are you suggesting that Fourth Amendmnet reasonableness should take into account the importance of that person’s travel, judged by whatever standard of importance you have?
March 30, 2011, 4:32 pmIspep Teid says:
At at least encrypt.
March 30, 2011, 4:32 pmOrin Kerr says:
EMB writes:
Really?
March 30, 2011, 4:35 pmAndrew J. Lazarus says:
No, I think he was trying to show that regardless of the Constitutional issues, the practice upheld can interfere severely with cross-border commerce.
March 30, 2011, 4:37 pmRagebot says:
Just out
Well the guy was on the ICE watch list for kiddie porn and had password protected files on his laptop.
March 30, 2011, 4:40 pmByomtov says:
Suppose I arrive at the border not with a computer but with a trailer full of documents.
What are the rules? Can the government take as long as necessary to examine the documents, without reasonable suspicion, even if that’s a matter of weeks or more?
The contents of the computer are really just a highly miniaturized version of such a truckload of documents, after all.
Maybe the problem is that the border exception originated before we could carry so much data. Nobody wants to spend weeks looking through stacks of paper without a very good reason, but searching the computer is relatively quick and easy. Could it be that the exception ought to be revisited in light of advancing technology?
March 30, 2011, 4:44 pmJoe Kowalski says:
Well, you can encrypt all your sensitive data with GPG or TrueCrpyt and send it to your destination via FedEx or such on DVD, and then only bring a “clean” laptop with you. E-mail the key to a temporary hotmail account before you leave, and at least the border crossing won’t cause disclosure of your data.
March 30, 2011, 4:45 pmterraformer says:
Nope. There is not enough good case law here to say that encryption of documents is enough to protect them. Subpoenas require one to produce evidence when the evidence is known to exist by the government.
The theory goes that being forced to divulge the encryption keys violates the 5th. I am not so sure this will be enough given the deference the courts have allowed the .gov in recent decades.
March 30, 2011, 4:46 pmjb says:
I would think that a bag of mysterious powder would probably count as reasonably suspicious.
I think this speaks to the reasonableness of this type of search in general. Would it be reasonable to impound your car as you drive across the border and send it off to a mechanic for two days to be taken apart and searched? Surely the invasiveness and damage caused by the search is relevant.
March 30, 2011, 4:49 pmMalvolio says:
Not entirely. It’s certainly possible to write data onto a hard-drive in such a fashion that an ordinary copy doesn’t capture the data. Of course, someone showing such foresight and diligence could find easier, more reliable, and more secure ways to smuggle the data. Email for example.
I’m hoping that statement reflects EMB’s naïveté, not his actual preferences. Given a choice about whether some random stranger looks around my computer or shoves his fingers up my pooper, that’s an easy call for me.
March 30, 2011, 4:52 pmJCC says:
@EMB
“…why this shouldn’t require probable cause, even at the border.”
Quoting from the decision: “…Time and again, [the Supreme Court] has stated that searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” …Rather, it is the traveler who must demonstrate he is entitled to cross our borders and to bring with him whatever he may wish to carry…Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”
BTW, the photos eventually discovered showed the defendant sexually molesting a 7 year old child over a period of years. I understand that the nature of the contraband should not influence the application of law, but all in all, sounds like a (rare) solid case for prosecutors to appeal. Case law is often settled from the dregs of criminal prosecutions.
And what Steve said.
March 30, 2011, 4:52 pmRagebot says:
Could someone explain how Cotterman being on the ICE watch list for previous kiddie porn convictions figures into the search. I recall going through customs a while back and all I had to do was turn on my laptop and take a pix with my digital camera and let peeps chimp it; all in all a rather quick process.
Just as an aside does anyone know how many watch lists there are and what they are for? Are there watch list for those convicted of pot smoking, coke, meth? How about bank robbers?
March 30, 2011, 4:53 pmptt says:
Not if they ship the cavity 170 miles away.
March 30, 2011, 5:09 pmRagebot says:
Would you rather the search used a 170 mile long finger?
March 30, 2011, 5:15 pmdht says:
Doesn’t the fact that he was on an ICE watch list make it a probable cause search? I know the court did not address that, but I think someone on a watch list is materially different than some regular Joe businessman crossing the border with a laptop.
March 30, 2011, 5:16 pmEdit – I see Ragebot asked essentially the same question.
Andrew J. Lazarus says:
Sure, but LE (and, for that matter, private data preservation and recovery companies) have special equipment.
March 30, 2011, 5:19 pmIspep Teid says:
That’s why our friends at TrueCrypt gave us hidden volumes.
March 30, 2011, 5:22 pmOrin Kerr says:
You might want to read United States v. Flores-Montano.
March 30, 2011, 5:25 pmJCC says:
@jb
“Surely the invasiveness and damage caused by the search is relevant.”
Actually, I don’t think that it is. Your auto (as your example) can be completely dismantled, as long as there is no bad faith in the disassembly (deliberate damage, for instance, or the search predicated on something you said about the inspector’s wife, etc), in which (good faith) case, I believe the remnants of your auto can be returned to you on a pallet (figuratively speaking). Naturally, such searches are rare and probably based in some intelligence (perhaps a poor choice of wording. I meant some purported info that a search may produce contraband), but theoretically, you assume the possibility (of disassembly) when you carry items across an international border.
Assuming you are at the actual border, or the functional equivalent, I believe the authority of border inspectors to dismantle, disassemble, or take apart anything in furtherance of a legal border search is practically limitless. As always though, the authority to do such is hopefully tempered by some degree of reasonableness.
@Ragebot
“…how Cotterman being on the ICE watch list for previous kiddie porn convictions figures into the search?”
I think that was offered merely as background explanation (to the courts) for the thorough search, not justification, since I don’t believe any justification was required once the border-crossing nature of the search was established.
March 30, 2011, 5:34 pmduffy pratt says:
I’ve got a question about the Court of Appeals determination that the duration of the detention was reasonable. Since the District Court had ruled that there needed to be reasonable suspicion, I assume that the District Court did not also address the question of the length of the detention.
It seems to me that there would need to be some facts to support a determination that the length of the detention was reasonable. The Court of Appeals goes straight to the record and lays out the evidence it says supports its position. It seems to me that the Court of Appeals here is simply acting as a factfinder. Is this sort of usurpation of the District Court common in these kinds of fourth amendment cases? I realize that lots of these questions are mixed questions of fact and law. But here, it seems pretty clear to me that the Court of Appeals is simply finding the facts on its own, when I would have thought that it should simply lay the standard out here, and remand to the district court to make factual findings and apply the relevant standard. Am I missing something?
March 30, 2011, 5:39 pmRagebot says:
The govt offered the ICE watch list in the original case, but abandoned it on appeal. Fletcher in dissent had some interesting comments about not buying the govt position, and hinting the reason it was dropped was because the govt wanted to expand its use of searches without justification.
March 30, 2011, 5:42 pmAJK says:
I would imagine that was why he was selected for heightened scrutiny. The government (it would appear) deliberately chose not to argue that that created reasonable suspicion, presumably in the hopes that a favorable opinion would grant a broader license for such searches in the future.
March 30, 2011, 5:42 pmJCC says:
And I stand corrected. The 2004 case cited by OK @ 5:25 says that there may be some limits if a disassembly pursuant to search is destructive, but the case declines to further describe those limits. So I take it to mean the border inspectors can’t use a chain saw to take apart your Mercedes, at least without some basis or judicial oversight.
March 30, 2011, 5:45 pmJoe Kowalski says:
Just remember, this only works so long as there are no references to data in the hidden volume outside of it. Preventing these types of leaks is easier said than done, especially since operating systems have made a habit of indexing everything and logging file access. Granted, a lot of these features can be turned off, but one has to be mindful to do that ahead of time, and more often than not such care is not taken.
March 30, 2011, 5:45 pmJCC says:
Ragebot
Oops. Guess I should have read the dissent, not just the decision.
March 30, 2011, 5:47 pmDon Miller says:
As a non-lawyer, I believe that border search rule can be used to justify the warrantless tapping of conversations by the Government when people inside the US call someone overseas. It should make no difference if the border is electronic or physical. If the Government can search at one border, they can search (ie tap) the other one too.
Not saying it is right, but it is logical.
March 30, 2011, 5:53 pmD.O. says:
Old Chief knew how to write briefly.
The opinion mentions something about possibility of compensation.
March 30, 2011, 6:01 pmRagebot says:
+10
March 30, 2011, 6:08 pmLKam says:
@EMB: “…why this shouldn’t require probable cause, even at the border.”
__
It does indeed require probable cause.
There is no border-exception or ‘extended-border’ exception in the 4th Amendment. Read it yourself.
Probable cause and normally a judicial warrant are the Constitutional standards for search/seizure… but no longer the American judicial standards.
The now popular ‘reasonable’ standard for warrantless searches was personally enshrined in law by Chief Justice William Howard Taft (Carroll v U.S. 1925) to expand police powers for alcohol Prohibition enforcement. During the Progressive Era, SCOTUS appointees became enamored of the quite elastic notion of “reasonableness” as the central criterion of Constitutional Law (…vastly increasing judicial-review power over legislation, of course).
Thus, it was an easy political step for Taft to assert that long-standing 4th Amendment warrant/probable-cause requirements would now be determined by vague “reasonableness.”
Customs officials are there to enforce tariff & immigration laws… not harass and search American citizens carrying valid passports. Routine warrantless border searches of citizen travelers and their personal effects were unheard of in most U.S. history. In the Founders time, Federal Revenue {Customs} officers were even required to have probable-cause (of smuggling untaxed goods) to search any commercial ships/cargo entering America {re: Federal ” Collections Act of 1789″}.
March 30, 2011, 7:22 pmNAME REDACTED says:
Yes, but you can “forget” encryption keys.
March 30, 2011, 7:34 pmLoop_Fiasco says:
I don’t think Willie Nelson was entering the U.S. from outside its territory when he was stopped at a border patrol checkpoint and searched for cannabis. I am assuming the same rationale that applies to laptops entering the country applies to those interior checkpoints?
If the distance to the forensic expert don’t matter – does the location of the border checkpoint itself? That is, if part of the justification for these searches is protection from objects coming from outside u.s. jurisdiction – - what if the item searched was and remained inside the U.S. the whole time. Like where Willie Nelson was, or people going from SoCal to Southern Arizona?? All over New Mexico and Texas?
These expansions of govt authority are dangerous. There are plenty of U.S. citizens getting caught in these dragnets and needlessly searched,detained,had property seized, etc… We got DUI checkpoints, border checkpoints, safety belt checkpoints, etc… all suspicionless and done ostensibly for safety and they end up being nothing more than general crime fighting; constitution avoiding revenue generating disasters for personal liberty. Cheerleaders for this obvious BS make me sick. I doubt we will ever reach the level of safety these statist apologists would require.
March 30, 2011, 8:37 pmtheobromophile says:
That also comes up with placing tracking devices on cars or tapping cell signals for location. Courts have justified that with, “Well, you could follow the person and get the information the same way”. To a lot of us, however, that ignores the manpower issue and the knowledge issue. If someone is following you around, you’ll notice. If someone is snooping through your trunk load of documents, you know which ones are seen, and you may have a general idea of how much of your personal correspondence is out there.
The time issue – even more so. I just can’t help but think that a police department which spent thousands of man-hours and many dollars tracking one person without reason would find its budget axed the next time around – and quite a lot of ‘splaining to do to voters, residents, higher-ups, and anyone who had been a victim of a crime. Of course, budgets and manpower limitations put a natural check on the number of people who could have been subjected to these things back in the day – but even then, the Fourth Amendment provided additional protection.
March 30, 2011, 9:15 pmEH says:
That’s why you hide it behind a high-profile serial killer going after homeless people.
March 30, 2011, 9:33 pmNI says:
The real problem here is that a creative government lawyer can, case-by-case, find a way to completely disembowel the Fourth Amendment without actually saying that that’s what’s happening. At this point, I’m not sure the Fourth Amendment is, in practice, anything more than a legal fiction. If almost all of the time the courts will find a search to be an exception to the Fourth Amendment, then why pretend the Fourth Amendment is still good law? Just admit what everyone already knows: We live in a police state.
And Orin, you’re a financially secure white guy, so the chances that you’ll ever be on the receiving end of an unreasonable search are slim to nil.
March 30, 2011, 10:04 pmStephen Lathrop says:
I’m a white guy who during the 1970s got stopped by the border patrol on the road between Shoshone ID and Twin Falls ID, hundreds of miles from any border. They got me out of the car and went over it pretty thoroughly. They didn’t search me. No idea what they were looking for, or what justification they would have offered if taken to court. After they were done they let me continue. Didn’t seem reasonable to me, then or now.
March 30, 2011, 10:48 pmMichael says:
The more I read this blog, the more I regard Professor Kerr’s views as a textbook example of that pernacious and maddening statist mindset that the “privileged class” tend to adopt, but the consequences of which their positions of status often permit them to avoid in the general case.
March 30, 2011, 11:23 pmjm says:
I maintain that a meaningful distinction can be made between border searches of tangible and intangible goods. Because intangible goods can’t actually be excluded in the same way as tangible goods, and because the border is especially porous with respect to intangible goods, the government interest in search at the border is weaker. As others have documented, the privacy costs of searches of hard drives may be heightened the costs for tangible property as well. Further, I’d point to replicability and encryption as important factors distinguishing the interest is border search of tangible and intangible goods. If you seize a kilo of drugs, you’ve lessened the supply of drugs. One copy of a digital file inside the border can instantly spread across the country.
This all goes to Arnold, not Cotterman, but I truly fail to see the legitimate government interest in searching intangible goods at the border.
March 30, 2011, 11:32 pmMike says:
No, I merely chose the example to demonstrate the possible strong negative consequences of impounding a laptop with important business data for “mere” two days, indicating that it is not a reasonable imposition. There is a very large jump in the definition of reasonable between depriving someone of their property and privacy for five minutes compared to an entire weekend, all with no cause requirement.
March 30, 2011, 11:45 pmEMB says:
Maybe “far greater” was an exaggeration, but yes. If the government were going out of its way to find some crime to charge me with despite no reasonable suspicion, or just to damage my reputation, then reading years and years of my documents, emails, browser histories, photos, videos, financial records, etc. would likely be far more effective than a cavity search that would turn up nothing.
Here’s a more extreme hypothetical: suppose a device were invented that could (quickly and safely) extract all of a person’s memories from their brain. Wouldn’t that be a lot more invasive than any search of their body?
(Or, on a different note, would it violate the Fourth Amendment if the government monitored and recorded, with full access for law enforcement without even reasonable suspicion, all internet traffic that entered or left the USA?)
March 31, 2011, 12:46 amRicardo says:
Not sure if this is what you had in mind but Shannon and Dublin airports in Ireland and various airports around the Caribbean and Canada have American immigration and customs inspectors clear people and goods for entry into the U.S. while they are still physically abroad. If you don’t want to be searched, Customs simply hands you over to local police and they decide whether to search or release you in accordance with local law.
The Fourth Amendment requires probable cause for warrants. It requires “reasonableness” for searches and seizures not covered by warrants. Whether reasonableness equals probable cause seems to depend on the situation and the circumstances. America’s earliest Customs law authorized port inspectors to board and search vessels without a warrant. That seems to indicate that few people at the time the Constitution was written thought that warrantless searches at the border based on minimal suspicion were unconstitutional.
March 31, 2011, 1:08 amRicardo says:
That goes to the question of whether or not the 4th Amendment enshrines an implied right to privacy versus a more limited protection from physical intrusion. Any privacy rights seem to be limited by reasonable expectations of privacy. If your files are so precious and secret, don’t go carrying them around with you where they can be stolen or inspected so easily. Keep them on an external hard drive locked in a safe in your home. If you do carry them slung over your shoulder in countries where you may not have any protection against searches at all, you cannot expect courts to automatically defer to your subjective ideas about how private your files are.
March 31, 2011, 1:37 amRicardo says:
That’s an ad hominem without any real foundation. Members of the “privileged class” tend to travel abroad for work and for pleasure much more often than the average person and are therefore much more likely to be at the receiving end of CBP zealousness.
Pretty much the only time I am ever questioned or searched in a confrontational manner is when arriving back in the U.S. I’ve been to authoritarian countries like Laos, China and Singapore and get treated pretty politely at the border. I’m not sure why you would think that a law professor would automatically get waved through Customs in the U.S.
March 31, 2011, 1:55 amZiz says:
I’m not quite sure what your point is. Are you saying the mechanics are fast and don’t hurt the car? That’s what SCOTUS seemed impressed with.
March 31, 2011, 2:17 amZiz says:
Orin, let’s say my laptop doesn’t have a single content file on it. Everything of that nature is in the cloud. When I cross the border into the U.S., the ICE men want to take a peek. Does existing 4th Amendment jurisprudence permit them to use my laptop to access files that do not reside on my laptop?
March 31, 2011, 2:29 amD.O. says:
Wow, wow. And it is said about someone who just a week ago has voluntarily subjected himself to Justice Scalia’s lame attempts at humor all for the benefit of people who might want to stop government’s ratcheting up 4am’s law in its favor.
March 31, 2011, 3:03 amNI says:
I’ve been to Cuba and Cuban customs and immigration barely looked at me; they essentially waved me through. What does it say about our so-called free society when people are treated better by the authorities in places like Cuba?
March 31, 2011, 7:08 amNickS says:
Look up Echelon.
March 31, 2011, 8:17 amNickS says:
I imagine a service where your data is encrypted with a random key, then that key is encrypted with a biometric (fingerprint, etc) you choose and stored online for 24-72 hours. Unless you access your encrypted key within that time frame, decrypt the key, then decrypt your data, it’s lost forever. It would then be the govt’s fault for not being able to access your data, not you.
March 31, 2011, 8:21 amMarcus says:
I get the argument and it seems people find it legally sound. If I understand the case correctly, however, there was no reasonable suspicion that a crime was, or was planned to be, committed by the owner with or without the computer. In such an instance, I believe the border patrol should be required to make a decision: allow the non-suspicious owner and his computer to enter the country, or prevent the non-suspicious owner from bringing his computer into the country. That is, while I get the “it’s still in our custody” line, I don’t believe they should be allowed to indefinitely hold personal property in their custody without a reasonable suspicion guiding the decision.
March 31, 2011, 8:59 amMike says:
Is anyone persuaded by the court’s attempt to distinguish United States v. Place? Given the Ninth Circuit’s previous ruling, I can understand the conclusion that this wasn’t a search. I haven’t read the opinion that closely, but how can it conclude this wasn’t a seizure?
March 31, 2011, 9:27 amRagebot says:
My understanding of the case seems to differ from yours.
Cotterman had multiple convictions relating to photographing his sex with kids; and as a result was on the ICE watch list. There is established case law that the govt has plenary power for searches at the border with no reasonable suspicion required. The court found the search of his computer (which required specialized resources) was completed in timely fashion (e.g. working all weekend by peeps who normally work M-F). The court also found moving the computer to the testing facilities probably resulted in a faster search than moving testing machines/peeps to the border.
It is not clear where you get the “indefinitely hold personal property” when ICE seemed to make a good faith effort to do things as quickly as possible.
As others have pointed out established law is that one has a reduced expectation of privacy when crossing a border, and 4A rights only come into play only when you have been cleared by customs.
March 31, 2011, 10:07 amPersonFromPorlock says:
The problem being that when the government determines what’s ‘reasonable’, it usually turns out to hinge on the convenience of the government. I’d have a lot more faith in such judgements if they were somehow put up to a public vote. And yes, I know that’s unreasonable.
March 31, 2011, 10:15 amRagebot says:
You sorta have to seize a laptop to search it (unless your name is Spock and you can do a Vulcan Mind Meld). The court pointed out ICE acted quickly to search the laptop, to the point of ignoring the traditional M-F workweek and completing the search on a weekend; something not normally done.
I could better understand your argument if the laptop had been put in a warehouse for years like the Arc of the Covenant, but it was put in a car, transported to a testing site, and searched as quickly as possible.
My reasonable test would be as long as a “search” is done 8-5 M-F, with lunch breaks it is a “search”; if there is a break of 72 hours where no searching is done it is a “seizure”. I would be open to other numbers and days to define a reasonable test if you want to submit them,
March 31, 2011, 10:16 amjb says:
That isn’t even close to being relevant to my comment. That search took something like 30 minutes. The reasonableness of that versus several days is my entire point. Surely you don’t think hauling the car off and leaving the man without transportation at the border wouldn’t change the analysis. Maybe they still find a way to justify it, but if anything the language about interference with the motorist’s interests supports the idea that taking the car for a few days would not be justified.
March 31, 2011, 10:33 amOrin Kerr says:
jb,
You’re failing to distinguish searches from seizures. If you want to complain about the search, then Flores-Montano is directly on point. If you want to complain about the seizure, then please address why you disagree with the reasonableness analysis, quite consistent with Flores-Montano, in the Cotterman decision.
March 31, 2011, 10:52 amByomtov says:
Theo,
That also comes up with placing tracking devices on cars or tapping cell signals for location. Courts have justified that with, “Well, you could follow the person and get the information the same way”. To a lot of us, however, that ignores the manpower issue and the knowledge issue.
Yes. That’s part of my point. In the old days practical considerations of cost, time, and manpower limited the government’s snooping power, regardless of Constitutional doctrine. As technology makes these considerations less of obstacle, or no obstacle at all, there’s at least a possibility that some of these sorts of analogies are really not valid.
March 31, 2011, 11:25 amMarcus says:
Yes, Ragebot, it would appear me using the word “understanding” was an overly broad term in that I obviously had none. I will also change my opinion to, “If creepy pedophile guy is returning from foreign country, search everything. Twice.”
March 31, 2011, 1:14 pmHarvey Mosley says:
Slightly off topic: In regards to the police using any type of radio transmitter to track or listen to a suspect, is there any law preventing the suspect from jamming that transmitter (assuming that it was possible, of course)?
March 31, 2011, 3:56 pmCrunchy Frog says:
Nice Wire reference!
March 31, 2011, 8:02 pmKirk Parker says:
Wot? Weren’t we just told in an earlier comment thread that all such searches are done on images of the drive?
EH,
What if you don’t have a conveniently-active local serial killer at the moment?
April 1, 2011, 4:11 amByung Kyu Park says:
Not to mention if there really is no reference to the hidden volume, how do you prevent the OS from accidentally writing over the physical sectors where the hidden volume is?
I thought perfect steganography wasn’t possible for this and other reasons. The best one can hope for is that a casual search won’t reveal the signs of steganographic encryption.
April 3, 2011, 5:31 amYour Laptop is NOT Private or Secure at US Customs « An Associate's Mind says:
[...] For a further breakdown and discussion see Professor Kerr’s post at the Volokh Conspiracy. [...]
April 11, 2011, 3:34 pm